Meadors v. Commissioner of Social Security

Filing 23

MEMORANDUM-DECISION and ORDERED, that the decision of the Commissioner is VACATED, and the case is REMANDED for a new hearing. Signed by Senior Judge Lawrence E. Kahn on January 15, 2015. (sas)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
MARYANN MEADORS,
Plaintiff,
-against-

5:13-CV-0160 (LEK)

CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

MEMORANDUM-DECISION and ORDER
I.

INTRODUCTION
This case has proceeded in accordance with General Order 18, which sets forth the

procedures to be followed in appealing a denial of Social Security benefits. Both parties have filed
briefs. Dkt. Nos. 14 (“Plaintiff’s Brief”); 21 (“Defendant’s Brief”). For the following reasons, the
judgment of the Social Security Administration (“SSA”) is vacated and this case is remanded for
further proceedings consistent with this Memorandum-Decision and Order.
II.

BACKGROUND
A. Plaintiff’s Medical Records
Plaintiff Maryann Meadors (“Plaintiff”), who was forty three years old at the time of the

SSA Commissioner’s (“Commissioner”) decision, has a history of back pain, shortness of breath,
carpal tunnel syndrome, anxiety, depression, and borderline intellectual functioning. Dkt. No. 9
(“Record”) at 294.1 Plaintiff maintains that her medical conditions preclude her from engaging in
any gainful work activity. R. at 24-32. Plaintiff alleges that she injured her back at work while

1

Citations to the Record are to the pagination assigned by the SSA.

reaching for a prescription, which led her to seek treatment from her primary care physician Dr.
Ahmed R. at 114. When Plaintiff saw Dr. Ahmed, on October 8, 2004, she complained of lower
back pain. Id. Dr. Ahmed prescribed Lioderm patches, Mobic, and an x-ray for her back pain. Id.
The x-ray showed minimal degenerative spurs of the L4 vertebral body. R. at 150.
Plaintiff saw Dr. Kuthuru, a pain management specialist, on November 17, 2004, with
complaints of back pain, and he diagnosed Plaintiff with lumbrosacral radiculopathy, spondylosis
with myelopathy, and myosfasical pain. Dr. Kuthuru recommended that Plaintiff consider
interventional spine care and prescribed Motrin, an MRI, and an at-home exercise program. R. at
125. The follow-up MRI, which Dr. Kuthuru prescribed, showed no evidence of disc herniation or
nerve root entrapment but did show slight bulging of the L3-4 and L4-5 discs as well as a central
protrusion of the L5-S1 disc. R. at 151.
Plaintiff returned to Dr. Kuthuru in December 2004 with complaints of sharp, achy, and
throbbing pain in her back, and he diagnosed her with lumbrosacral radiculopathy, lumbrosacral
spondylosis with myelopathy, and myosfasical pain, and Dr. Kuthuru prescribed the use of hot/cold
therapy, the continuance of the home exercise program, and Neurontin. R. at 128-29. Plaintiff saw
Dr. Kuthuru again in January 2005 with complaints of continued lower back pain and right lower
extremity paresthesia, and Dr. Kuthuru maintained her diagnosis. R. at 131-32. Dr. Kuthuru also
noted that prior attempts at physical therapy and chiropractic treatments had failed, yet there are no
notes in the record of these treatments other than the recommended at-home exercises prescribed on
November 17, 2004. R. at 131. Plaintiff also stated that the pain was made worse by standing and
decreased while sitting. Id. Dr. Kuthuru recommended a nerve conduction study, which was done
on February 15, 2005. R. at 137-38. The nerve conduction study showed radiculopathy affecting
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the right L5-S1 neurotomal segments. Id.
After the nerve conduction study, Dr. Kuthuru referred Plaintiff to an orthopedic spinal
surgeon, Dr. Blecha. R. at 131. Dr. Blecha examined Plaintiff and her radiological studies,
concluded that Plaintiff did not need surgery, and instead gave her two treatment options: (1) to
continue the use of medications; or (2) to have a lumbar epidural steroid injection. R. at 156-57.
Plaintiff disfavored the latter approach due to her fear of needles. Id.
Plaintiff then went for a consultative examination on May 16, 2005, with Dr. Shayevitz. R.
at 167-69. Plaintiff reported no medications other than Valium; she needed no assistive devices,
help changing, or getting on and off the exam table; she had no difficulty rising from the chair; and
appeared to be in no acute distress. Id. Plaintiff had no issues with her upper extremities, but the
doctor found some reduced motion in her lumbar spine, tenderness in her lower back, and a right
sacroiliac notch, but no spasms. Id. Muscle strength in her lower extremities was four out of five
on a five-point strength scale, and the doctor noted that she had a decreased sensation to pinprick in
her right side lower extremities. Id. Dr. Shayevitz opined that Plaintiff would have “limitations in
any prolonged sitting, standing, walking, and certainly any heavy lifting” but did not quantify
“prolonged.” Id.
On February 21, 2006, Plaintiff returned to Dr. Ahmed with complaints of back pain and a
“constant ache.” R. at 239. Dr. Ahmed prescribed Flexeril and Ultram. Id. Plaintiff saw Dr.
Ahmed again on June 5, 2006, for lower back pain. R. at 249. Plaintiff stated that she had stopped
physical therapy and had found no relief from chiropractic care. Id. Dr. Ahmed prescribed Motrin.
Id. Plaintiff saw Dr. Ahmed again on June 25, 2007, with complaints of worsening lower back pain
and difficulty sleeping. R. at 645. Dr. Ahmed did not prescribe any medication but noted that
3

Plaintiff was taking Darvocet. Id.
Plaintiff had another MRI and x-ray of the lumbar spine on July 5, 2007, which a radiologist
and the orthopedic surgeon, Dr. Blecha, reviewed and interpreted. R. at 648, 655. Dr. Blecha noted
that while the radiologist found minimal central protrusion at L5-S1, he did not see it in the films.
R. at 655. Dr. Blecha then noted that Plaintiff might have minimal protrusion of disc material at L5S1 on the left side, which is not the side she was experiencing pain. Id. He also noted that “there is
no loss of signal consistent with degenerative disc disease” and then went on to state that he “did
not know why this lady has so much low back pain” since the etiology of the pain was unknown. R.
at 655. He then stated that he had referred her for pain management to Dr. Kuthuru years ago, and
Plaintiff stated she did not see him due to insurance issues. Id. That same month, Dr. Kuthuru
opined that Plaintiff could only lift and/or carry ten pounds occasionally, could sit less than six
hours per day in an eight-hour workday, and could stand less than two hours per day. R. at 653-54.2
Plaintiff underwent another consultative examination with Dr. Ganesh on August 20, 2007.
Dr. Ganesh noted that Plaintiff did not appear to be in any acute distress, she walked on her heels
and toes without issue, had no assistive devices, needed no assistance changing or getting on and off
the exam table, and had no issues rising from the chair. R. at 657. Dr. Ganesh noted Plaintiff had a
lumbar flexion of sixty degrees, extension of ten degrees, and that her lateral flexion was full. Id.
Plaintiff had a negative straight leg raise test, equal deep tendon reflexes, five out of five on a fivepoint strength scale in lower and upper extremities, but had a limited squat. R. at 657-58. Dr.
Ganesh opined that Plaintiff had “no limitation for sitting, standing, or walking . . . mild to moderate

2

The State of New York has since suspended Dr. Kuthuru’s medical license due to
irregularities in his practice. R. at 301.
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limitation for lifting, carrying, pushing, and pulling” but did not quantify “mild to moderate.” Id.
Dr. Ahmed then referred Plaintiff to Dr. Robinson, and orthopedic surgeon. R. at 703.
Plaintiff saw Dr. Robinson on September 11, 2009, with complaints of dysfunction and pain in her
lumbar spine and numbness in her lower extremities that had become progressively more severe. Id.
Plaintiff claimed sitting, standing, and walking aggravated the issue and the pain caused her
difficulty with sleep. Id. Dr. Robinson requested an updated lumbar MRI before prescribing any
treatment. R. at 705. On September 28, 2009, the MRI study showed mild to moderate disc
degeneration of L3-L4, no narrowing of spinal canal, and minimal bulging of the L4-L5. R. at 706.
The radiologist diagnosed Plaintiff with moderate disc degenerative disease. R. at 700-07. Dr.
Robinson, after reading the MRI and giving Plaintiff a physical examination on October 9, 2009,
dictated that Plaintiff had bilateral tenderness to her lumbosacral spine, a ninety degrees straight leg
raise test, normal lower extremity motor exam on both sides, and a limited range of motion in right
and left side bends. R. at 703-05. However, Dr. Robinson had noted on September 11, 2009, that
Plaintiff had decreased sensation in her right and left lower extremities. R. at 700-02. He
prescribed her an epidural injection, which Plaintiff later refused due to her fear of needles. Id. It
was then later noted in Dr. Ahmed’s notes on September 17, 2009, that Dr. Robinson also
prescribed Plaintiff hydrocodone (Lortabs). R. at 714.
In May 2010, Dr. Robinson referred Plaintiff to the New York Spine and Wellness Center
where, over the course of an eleven month period, three different doctors saw her. On May 11,
2010, Plaintiff saw Dr. Cantania, and reported having radiating lower back pain that caused her to

5

wake up during the night and only get four to five hours of sleep per night.3 R. at 736-38.
Examination showed tenderness to Plaintiff’s sacroiliac joint, an antalgic gait, full range of motion
in lower extremities, limited motion in her spine, and normal (2+) reflexes on both sides. R. at 743.
Dr. Cantania recommended that she continue to use the Lortabs (hydrocodone) and scheduled her
for a nerve block, which Plaintiff later cancelled due to her phobia of needles. R. at 737, 741, 743.
On June 4, 2010, Plaintiff saw Dr. Tallarico, who recommended chiropractic visits. R. at 741.
There is no evidence in the record that Plaintiff went to any chiropractic visits.
On August 17, 2010, Plaintiff had her first visit with pain management specialist, Dr. Tiso.
R. at 738-39. Dr. Tiso’s physical examination of Plaintiff revealed paraspinous tenderness on the
right side, tenderness to Plaintiff’s SI joint and sciatic notch, and a normal range of motion. Id. He
diagnosed Plaintiff with lumbar degenerative disc disease and lumbar radiculopathy, and
recommended she continue her current medications with the addition of Ambien. Id. Dr. Tiso saw
Plaintiff for her next follow-up visit on October 19, 2010; diagnosis and physical examination were
the same, and he recommended she continue the same treatment plan with no changes. Id. at 73637. Dr. Tiso opined that Plaintiff would be unable to sit or stand for more than fifteen minutes and
could not lift or carry anything above ten pounds. Id. Plaintiff followed up again with Dr. Tiso on
April 5, 2011, with the same complaint of lower back pain and Dr. Tiso noted the same diagnosis
and gave Plaintiff the same treatment plan as prescribed beforehand. Id. at 733-34.
On October 25, 2010, Dennis Noia, Ph. D., performed an intelligence evaluation of Plaintiff
and assessed Plaintiff as having an IQ of 77, indicative of borderline intellectual functioning. R. at

3

In her brief, Plaintiff asserts that she was treated by Dr. Tiso at the Spine and Wellness
Center; however, the signing physician is Dr. Cantania. Pl.’s Br. at 10; Dkt. No. 9 at 744.
6

721-26. Dr. Noia also opined that Plaintiff had mild limitations in making complex judgments but
had no limitations in her ability to understand, remember, or carry out complex instructions, and had
no issue remembering simple instructions. Id.
B. ALJ Hearing
On February 2, 2005, Plaintiff protectively filed for disability insurance benefits and
supplemental security income, alleging disability resulting from back pain that had caused her
difficulty standing and sleeping from an onset date of November 16, 2004. R. at 52, 68. An
Administrative Law Judge (“ALJ”) denied Plaintiff’s first claim on September 28, 2006. R. at 2432. Plaintiff then filed a civil action in the United States District Court for the Northern District of
New York and the Court affirmed the ruling on June 16, 2009. R. at 363; Meadors v. Astrue, No.
07-CV-0623, 2009 WL 1706580, at *1 (N.D.N.Y. June 16, 2009) (Kahn, J.). The United States
Court of Appeals for the Second Circuit then affirmed in part, reversed in part, and remanded the
case for further administrative proceedings. Meadors v. Astrue, 370 F. App’x 179 (2d Cir. 2010).
The Appeals Council vacated the decision, sent it back to an ALJ for further proceedings consistent
with the order of the Council, and ordered that Plaintiff be offered the opportunity for another
hearing. Meadors v. Astrue, No. 07-CV-0623, 2010 WL 1945763, at *1 (N.D.N.Y. May 13, 2010)
(Kahn, J.). Plaintiff took said opportunity.
The second hearing occurred on June 22, 2011. During the hearing, vocational expert
(“VE”) Donald Shader testified about Plaintiff’s previous work experience and answered multiple
hypotheticals posed by both the ALJ and Plaintiff’s attorney. R. at 809. Mr. Shader reported that
prior to the hearing, Plaintiff worked as a pharmacy technician and that any other jobs she worked
were all placements through a temporary service, and thus were irrelevant to his assessment. R. at
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810-11. The ALJ then posed a hypothetical to the VE as to what vocations were available to
someone of Plaintiff’s age, education, and experience and with the following limitations:
could lift and carry 20 pounds occasionally and 10 pounds frequently; can stand and
walk six out of eight hours, and sit six out of an eight-hour period; push and pull
consistent with light exertion. There are no postural, manipulation - or manipulative,
visual, or environmental limitations except only occasional squatting and no climbing
of ladders and scaffolds. And mentally . . . can understand and follow simple
instructions and directions and perform simple and some complex tasks with
supervision and independently, and can maintain attention and concentration for
tasks, can attend to a routine and maintain a schedule, can learn new tasks, [and] can
work in a low-stress environment, defined as occasional decisions making and
occasional interaction with others.
R. at 816-18. Considering all those factors, the VE testified that an individual in the above
hypothetical would be able to perform such occupations as a mail clerk, an assembler of small parts,
and an office helper. Id.
The ALJ then changed the physical limitations of the hypothetical to a person who was
limited to only standing and walking four hours out of an eight-hour period, thirty minutes at a time
and sitting six hours out of an eight hour period, forty five minutes at a time, and with the same
mental limitations. R. at 820-21. The VE again said that person could be a mail clerk or an office
helper, but a small parts assembler may not be feasible. Id. The hypothetical proposed by the ALJ
to the VE was the same except that the hypothetical person would be limited to lifting and carrying
only ten pounds, standing and walking four hours out of an eight hour period thirty minutes at a
time, and sitting six hours out of an eight-hour period thirty minutes at a time. R. at 821-22. The
VE testified that a person in that hypothetical could be an eyeglass frame polisher. R. at 823. The
VE then testified that while there are more jobs out there for a person matching the above
hypothetical, none existed in sufficient numbers. R. at 824.

8

Plaintiff’s attorney then modified the hypothetical, adding limitations of needing
unscheduled breaks that were beyond the breaks one normally gets and if said person had to take
about four days or more off a month. R. at 825-26. The VE answered that there would be no jobs
available to someone in that situation. R. at 826.
C. The ALJ’s Decision
ALJ Robert E. Gale issued a decision denying Plaintiff’s application for disability and
supplemental security income. R. at 291-307. The ALJ found that Plaintiff had not engaged in any
substantial gainful activity since November 16, 2004. R. at 294. The ALJ then found that Plaintiff
did suffer from a severe impairment, lumbar spine degenerative disc disease. R. at 294. The ALJ
did not find that Plaintiff had any other combination of impairments that would meet the medical
standard of another severe impairment as listed in the law. R. at 298. The ALJ further found that
Plaintiff had the residual functional capacity (“RFC”) to:
lift and/or carry 20 pounds occasionally and 10 pounds frequently, stand and/or walk
for six hours in an eight-hour day, sit for six hours in an eight-hour day, and push
and/or pull consistent with light exertion. She has no postural, manipulative, visual,
or environmental limitations except she can only occasionally squat and should not
climb ladders and scaffolds. [Plaintiff] can understand and follow simple
instructions and directions, perform simple and some complex tasks with supervision
and independently, maintain attention and concentration for tasks, attend to a routine,
maintain a schedule, learn new tasks, and work in a low[-]stress environment,
defined as occasional decision-making and occasional interaction with others.
R. at 299. Furthermore, while it was determined that Plaintiff could not perform her past relevant
work, the VE identified jobs that exist in significant numbers in her geographic area and in the
national economy, which Plaintiff could perform. R. at 305-06. Therefore, the ALJ concluded that
Plaintiff was not disabled by the standards set forth in the Social Security Act. R. at 307.
Plaintiff filed a request for review on November 29, 2011. R. at 283. On October 23, 2012,
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the ALJ’s decision became the final decision of the Commissioner when the Appeals Council
denied the request for review. R. at 279-81. Plaintiff timely filed an appeal on February 11, 2013.
Dkt. No. 1 (“Complaint”).
III.

LEGAL STANDARD
A. Standard of Review
When the Court reviews the SSA’s final decision, it determines whether the ALJ applied the

correct legal standards and if his decision is supported by substantial evidence in the record. 42
U.S.C. § 405(g); Roat v. Barnhart, 717 F. Supp. 2d 241, 248 (N.D.N.Y. 2010) (Kahn, J.) (citing
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982)). Substantial evidence amounts to “more than
a mere scintilla,” and it must reasonably support the decision maker’s conclusion. Halloran v.
Barnhart, 362 F.3d 28, 31 (2d Cir. 2004) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)).
The Court defers to the Commissioner’s decision if it is supported by substantial evidence, “‘even if
it might justifiably have reached a different result upon a de novo review.’” Sixberry v. Colvin, No.
12-CV-1231, 2013 WL 5310209, at *3 (N.D.N.Y. Sept. 20, 2013) (quoting Valente v. Sec’y of
Health and Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984)). However, the Court should not
uphold the ALJ’s decision when there is substantial evidence, but it is not clear that the ALJ applied
the correct legal standards. Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987).
B. Standard for Benefits
According to SSA regulations, disability is “the inability to do any substantial gainful
activity by reason of any medically determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be expected to last for a continuous period of
not less than 12 months.” 20 C.F.R. § 404.1505(a). An individual seeking disability benefits
10

“‘need not be completely helpless or unable to function.’” De Leon v. Sec’y of Health and Human
Servs., 734 F.2d 930, 935 (2d Cir. 1984) (quoting Gold v. Sec’y of Health, Educ. and Welfare, 463
F.2d 38, 41 n.6 (2d Cir. 1972)).
In order to receive disability benefits, a claimant must satisfy the requirements set forth in
the SSA’s five-step sequential evaluation process. 20 C.F.R. § 404.1520(a)(1). In the first four
steps, the claimant bears the burden of proof; at step five, the burden shifts to the SSA. Kohler v.
Astrue, 546 F.3d 260, 265 (2d Cir. 2008) (quoting Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996)).
If the SSA is able to determine that Plaintiff is disabled or not disabled at any step, the evaluation
ends. 20 C.F.R. § 404.1520(a)(4). Otherwise, the SSA will proceed to the next step. Id.
At step one, the SSA considers plaintiff’s current work activity to see if it amounts to
“substantial gainful activity.” 20 C.F.R. § 404.1520(a)(4)(i). If it does, plaintiff is not disabled
under SSA standards. Id. At step two, the SSA considers whether plaintiff has a severe medically
determinable physical or mental impairment, or combination of impairments that is severe, that
meets the duration requirement in § 404.1509. Id. at § 404.1520(a)(4)(ii). If she does not have such
impairment, plaintiff is not disabled under SSA standards. Id. At step three, the SSA considers the
severity of plaintiff’s medically determinable physical or mental impairment(s) to see if it meets or
equals an impairment and the requisite duration listed in 20 C.F.R. § 404(P), Appendix I. Id. at
§ 404.1520(a)(4)(iii). If it does not, the SSA moves on to step four to review plaintiff’s RFC and
past relevant work. Id. at § 404.1520(a)(4)(iv). Plaintiff is not disabled under SSA standards if the
RFC reveals that plaintiff can perform past relevant work. Id. If plaintiff cannot perform her past
relevant work, the SSA decides at step five whether adjustments can be made to allow plaintiff to
work somewhere in a different capacity. Id. at § 404.1520(a)(4)(v). If appropriate work does not
11

exist, then the SSA considers plaintiff to be disabled. Id.
IV.

DISCUSSION
Plaintiff argues that: (1) the ALJ’s RFC determination is unsupported by substantial

evidence, as the ALJ erred by according inadequate weight to the opinion of treating physician Dr.
Tiso, failed to properly analyze the opinion of consultative examiner Dr. Shayevitz, and erroneously
accorded significant weight to the opinion of consultative examiner Dr. Ganesh; (2) the ALJ erred in
failing to make a proper credibility finding as to Plaintiff’s testimony; and (3) the ALJ erred by
relying on an incomplete hypothetical in determining that Plaintiff could perform jobs in the
national economy. Pl.’s Br. at 1.
A. The Treating Physician Rule and Weight of Evidence
Plaintiff asserts that the ALJ violated the treating physician rule by not giving substantial
weight to Dr. Tiso, Plaintiff’s treating physician. Pl.’s Br. at 14. Although the ALJ must determine
whether or not a plaintiff is disabled, the ALJ is not a physician, and thus must consider the treating
physician’s opinions in his or her decision. Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999). Yet,
the opinion of a treating physician need not be “afforded controlling weight where . . . the treating
physician issued opinions that are not consistent with other substantial evidence in the record.”
Halloran, 362 F.3d at 32. If the Court finds the ALJ erred in failing to adequately explain his
reasoning for not crediting the opinion of any of the treating physicians, then the case must be
remanded. Id.
The ALJ has the duty to assess all the medical opinions in the record when deciding a
plaintiff’s claim. 20 C.F.R. § 404.1527(c)(2). Since there is more than one medical opinion in this
case, the ALJ looks specifically to the treating physician’s opinion. Id. The ALJ then must give the
12

treating physician’s opinion controlling weight if it “is well-supported by medically acceptable
clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial
evidence in [Plaintiff’s] record.” Id. The ALJ must provide “good reason” for not granting
controlling weight to the treating physician, examining the following factors:
(i) the frequency of examination and the length, nature and extent of the treatment
relationship; (ii) the evidence in support of the treating physician’s opinion; (iii) the
consistency of the opinion with the record as a whole; (iv) whether the opinion is
from a specialist; and (v) other factors brought to the Social Security
Administration’s attention that tend to support or contradict the opinion.
Halloran, 362 F.3d at 32. The Second Circuit stated that it will “not hesitate to remand” if the ALJ
does not include these explanations. Id. at 33; see also Ryan v. Astrue, 650 F. Supp. 2d 207, 212
(N.D.N.Y. 2009) (Kahn, J.).
Furthermore, if an “[o]pinion of claimant’s treating physician, that claimant was totally
disabled, was not supported by objective evidence” then the ALJ is not required to give the treating
physician’s opinion controlling weight when making a disability determination. Thompson v.
Barnhart, 75 F. App’x 842, 845 (2d Cir. 2003). For the purposes of a SSI disability hearing,
objective evidence means medical signs, which include observable abnormalities and lab findings
such as x-rays. 20 C.F.R. § 404.1528(b) and (c). “Other” evidence is all evidence described in §§
404.1512(b)(2) through (8) and 404.1513(b)(1), (4), (5), and (d), which includes Plaintiff’s medical
history, physician’s statements, medical opinions, and so forth. However, if the objective evidence
supports Plaintiff’s disability and that evidence is “not inconsistent with the other substantial
evidence in [the] record,” that treating physician’s opinion deserves controlling weight. 20 C.F.R. §
404.1527(d)(2); see Halloran, 362 F.3d at 3132.

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1. Dr. Tiso
Plaintiff argues that the ALJ erred by according inadequate weight to the opinion of treating
physician Dr. Tiso. Pl.’s Br. at 1. The ALJ accorded Dr. Tiso’s opinion “limited weight,” finding
that Dr. Tiso had documented positive findings; objective evidence in the record did not support his
opinion; and his opinion was “inconsistent with [Plaintiff’s] treatment history and activities of daily
living.” R. at 303. However, the ALJ failed to recognize Dr. Tiso as a treating physician and to
properly assess Dr. Tiso’s opinion, since the ALJ failed to “comprehensively set forth [his] reasons
for the weight assigned to a treating physician’s opinion.” Halloran, 362 F.3d at 33.
First, the ALJ failed to take into consideration that Dr. Tiso was a pain management
specialist and had seen the patient three times in less than a year. R. at 302-03. The ALJ thus failed
to consider some of the various factors that he should consider in deciding what weight to give the
opinion of a treating physician. See Halloran, 362 F.3d at 32. The ALJ also did not take into
consideration Dr. Tiso’s diagnosis of lumbar degenerative disc disease or Dr. Tiso’s RFC
determination, which were not inconsistent with other evidence in the record, including the
statements of Dr. Ahmeds and Dr. Shayevits, who both opined the Plaintiff had limited
functionality. Furthermore, the ALJ failed to take into consideration the objective medical evidence
of an MRI done in 2009, which showed Plaintiff as having moderate degenerative disc disease and
is consistent with the record. R. at 706-07. Therefore, the ALJ failed to give Plaintiff’s treating
physician controlling weight and failed to properly elaborate on why he declined to give him
controlling weight. This failure is grounds for remand. Dunker v. Astrue, No. 11-CV-321A, 2014
WL 297100, at *9-10 (W.D.N.Y. Jan. 27, 2014).

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2. Dr. Shayevitz
Plaintiff next argues that the ALJ erred in failing to contact the consultative physician Dr.
Shayevitz to request clarification on the term “prolonged” in concern to Plaintiff’s functional
limitations. Pl.’s Br. at 16-17. The ALJ only has the duty to contact a physician if there are “clear
gaps” in the medical record; however, he or she is not required to contact the physician if the ALJ
can decide whether plaintiff is disabled based on the existing evidence. DeChirico v. Callahan, 134
F.3d 1117, 1184 (2d Cir. 1998); see also 20 C.F.R. § 404.1512(e). Furthermore, there is no
requirement that an ALJ contact consultative examiners because the regulations only address
contacting plaintiff’s treating physician. Id. Since this argument concerns the ALJ contacting a
consultative physician, who only saw Plaintiff once, the ALJ did not have the duty to contact that
physician. Even if the rule applied to any and all physicians, the ALJ was able to decide whether
Plaintiff was disabled as per the existing evidence in the record. Finally, Plaintiff’s claim that the
ALJ failed to state the weight that he accorded Dr. Shayevitz’s opinion is without merit. The ALJ
stated that Dr. Shayevitz’s opinion was of limited utility. R. at 300. Therefore, since the ALJ
properly stated the weight accorded Dr. Shayevitz’s opinion, Plaintiff’s contention is not at issue.
3. Dr. Ganesh
Next, Plaintiff contends that the ALJ erred in assigning significant weight to the findings of
consultative physician Dr. Ganesh. Pl.’s Br. at 18. However, in a social security disability benefits
case, the ALJ may treat a consultative physician’s opinion as substantial evidence so long as the
physician’s “assessment was consistent with the objective medical evidence.” Barringer v. Comm’r
of Soc. Sec., 358 F. Supp. 2d 67, 79 (N.D.N.Y. 2005). Dr. Ganesh based his opinion on Plaintiff’s
subjective allegations of pain and mobility limitations, a physical examination of mobility, a
15

neurological examination, list of medications, and medical imaging. R. at 657-58. The ALJ found
Dr. Ganesh’s opinion to be consistent with the objective medical evidence in the record. R. at 301.
The medical imaging studies showed mild to moderate disc degenerative disease with no herniation.
R. at 151, 648. The ALJ found this to be consistent with Dr. Ganesh’s physical exam of Plaintiff
where he noted that Plaintiff needed no assistance during the exam and found a full cervical range of
motion, and only slight limitation in her lumbar’s range of motion. R. at 302.
Finally, Plaintiff claims the use of the terms “mild” and “moderate” was too vague and did
not permit the ALJ to make the necessary inferences with respect to Plaintiff’s RFC. Pl.’s Br. at 18.
Plaintiff is correct. Plaintiff relies on Curry v. Apfel, which held that the use of the terms “mild”
and “moderate,” without additional information, is too vague, and that the ALJ cannot rely upon
those terms when determining Plaintiff’s ability to work. 209 F.3d 117, 123 (2d Cir. 2000). The
following findings were listed in Dr. Ganesh’s examination report: no visible distress, needed no
assistance, full cervical range of motion; some limited lumbar range of motion, and strength was
five out of five on a five-point strength scale in her upper and lower extremities, which could
constitute the basis for Dr. Ganesh’s opinion. R. at 656-58. However, Dr. Ganesh used broad terms
such as “mild” and “moderate” when describing Plaintiff’s condition, which are too vague for an
ALJ to rely on. Graves v. Astrue, No. 12-CV-48, 2013 WL 4779193, at *12 (N.D.N.Y. Sept. 5,
2013). With such vague findings, the ALJ is precluded from according more weight to Dr. Ganesh
than to Plaintiff’s treating physician. Id.
B. Credibility Determination
Plaintiff claims that the ALJ’s credibility determination is unsupported by substantial
evidence. Pl.’s Br. at 19. Under C.F.R. § 404.1529, the ALJ must evaluate a claimant’s credibility
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as part of her disability determination. When the ALJ weighs a plaintiff’s credibility to determine
her RFC, the court is required to review it. Fallon v. Colvin, No. 11-CV-1339, 2014 WL 61244, at
*5 (N.D.N.Y. 2014) (Kahn, J). When considering credibility “[a]n [ALJ] may properly reject
[subjective complaints] after weighing the objective medical evidence in the record, the claimant’s
demeanor, and other indicia of credibility, but must set forth his or her reasons ‘with sufficient
specificity to enable [the Court] to decide whether the determination is supported by substantial
evidence.’” Lewis v. Apfel, 62 F. Supp. 2d 648, 651 (N.D.N.Y. 1999) (quoting Gallardo v. Apfel,
No. 96 CIV 9435, 1999 WL 185253, at *5 (S.D.N.Y. Mar. 25, 1999)). Furthermore, “whatever
findings the ALJ makes must be consistent with the medical and other evidence.” Williams ex rel.
Williams v. Bowen, 859 F.2d 255, 261 (2d Cir. 1988). If, however, the record supports contrary
findings, the Court will give the ALJ’s factual findings conclusive weight so long as they are
supported by substantial evidence. Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010).
SSR 96-7p includes a two-part inquiry for evaluating a plaintiff’s contentions of pain and
their symptoms:
First, the adjudicator must consider whether there is an underlying medically
determinable physical or medical impairment(s) . . . that could reasonably be
expected to produce the individual’s pain or other symptoms . . . .
Second . . . the adjudicator must evaluate the intensity, persistence, and limiting
effects of the individual’s symptoms to determine the extent to which the symptoms
limit the individual’s ability to do basic work activities . . . .
According to 20 C.F.R. §§ 404.1529(c)(3)(i)-(vii) and 416.929(c)(3)(i)-(vii), if a plaintiff’s
allegations of pain and symptoms are not supported by objective weight, then the ALJ must consider
the following factors in considering the plaintiff’s credibility:
(i) [Plaintiff’s] daily activities;
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(ii) The location, duration, frequency, and intensity of pain or other symptoms;
(iii) Precipitating and aggravating factors;
(iv) The type, dosage, effectiveness, and side effects of any medication taken to
alleviate pain or other symptoms;
(v) Treatment, other than medication, received for relief of pain or other symptoms;
(iv) Any measures used to relieve pain or other symptoms; and
(vii) Other factors concerning functional limitations and restrictions due to pain or
other symptoms.
Ritter v. Astrue, No. 09-CV-1167, 2012 WL 1717302, at *11 (N.D.N.Y. May 15, 2012).
Here, the ALJ included both components of the two-part test in his decision. The ALJ found
“the claimant’s medically determinable impairments could reasonably be expected to cause the
alleged symptoms.” R. at 304. Next, he found that Plaintiff’s “statements concerning the intensity,
persistence and limiting effects of those symptoms were not entirely credible.” Id. The ALJ based
his credibility determination on the following factors: (1) Plaintiff’s testimony regarding her daily
activities did not support Plaintiff’s disability claim; (2) Plaintiff received limited medical
treatment; and (3) Plaintiff’s allegations were inconsistent “with her negative clinical findings,
treatment history, and activities.” R. at 72 and 304.
The ALJ notes that Plaintiff’s testimony regarding her daily activities was inconsistent with
clinical findings and her own admitted degree of participation in her daily activities. R. at 302-03.
The ALJ found through Plaintiff’s testimony that she could meet her personal care needs; could
prepare small meals; do some household chores including dishes; drive herself; and go shopping
with the assistance of someone, which the ALJ found to be inconsistent with her complaints of
difficulty lifting, carrying, standing, sitting, climbing stairs, kneeling, squatting, reaching, or
bending. R. at 299. While it is true that a plaintiff need not be invalid to be considered disabled, a
plaintiff’s daily activities still factor into the analysis of the plaintiff’s RFC. 20 C.F.R. §

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1529(c)(3)(i).
In the ALJ’s credibility determination, he focused on Plaintiff’s limited medical treatment.
R. at 304. The ALJ “must not draw any inferences about an individual’s symptoms and their
functional effects from a failure to seek or pursue regular medical treatment without first
considering any explanations that the individual may have provided . . . that may explain infrequent
or irregular medical visits or failure to seek medical treatment.” S.S.R. 96-7p, 1996 WL 374186, at
*7. The ALJ relied upon Plaintiff’s rejection of injections and interventional spinal care yet failed
to consider Plaintiff’s fear of needles. R. at 304. The ALJ further discredited Plaintiff’s credibility
by noting that Plaintiff at times took only ibuprofen. R. at 304. However, the ALJ failed to take
into account the prescription pain reliever, Lortab, that Plaintiff had been taking since 2009. R. at
702, 714. The ALJ also failed to acknowledge the ineffectiveness of the prescription pain reliever.
The ALJ also considered that while Plaintiff testified she had physical therapy and
chiropractic care, the record contains no evidence of such treatment, other than her word and
numerous doctor referrals. R. at 372. Plaintiff did not raise the issue in her brief that the Court
should consider the lack of evidence of these visits as a gap in the record. However, the ALJ raised
the issue that there is no evidence of Plaintiff following through with either physical therapy or
chiropractic treatment when weighing the credibility of Plaintiff’s complaints. R. at 304. This lack
of proof is an obvious gap in the record. When “there are gaps in the administrative record or the
ALJ has applied an improper legal standard,” the case should be remanded for further development
of evidence. Parker v. Harris, 626 F.2d 225, at 325 (2d Cir. 1980).
The ALJ found that while Plaintiff was partially credible, insofar as her condition could
reasonably cause her pain, he did not find that the objective medical evidence supported Plaintiff’s
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allegation of the severity, persistence, and significant physical functional limitations. R. at 304.
The ALJ stated that MRI findings did not support Plaintiff’s allegations. Id. However, the ALJ
failed to address the most recent MRI findings in 2009, which found mild to moderate disc
degeneration of L3-4, no narrowing of spinal canal, and minimal bulging of the L4-5. R. at 706.
The ALJ’s “failure to acknowledge relevant evidence or to explain its implicit rejection is plain
error.” St. Louis ex rel. D.H. v. Comm’r of Soc. Sec., No. 11-CV-847, 2014 WL 2894438, at *4
(N.D.N.Y. June 25, 2014) (quoting Pagan v. Chater, 923 F.Supp. 547, 556 (S.D.N.Y. 1996)). The
ALJ also relied upon negative clinical findings but failed to consider any contrary findings in
determining whether Plaintiff’s complaints were consistent with objective medical evidence. R. at
304.
While the ALJ complied with the standards set forth in SSR 96-7p, the ALJ incorrectly
considered the factors listed in SSR 96-7p, and therefore his determination was not based upon
substantial evidence. The ALJ also failed to be “sufficiently specific to make clear to the individual
and to any subsequent reviewers the weight the adjudicator gave to the individual’s statements and
the reasons for that weight.” S.S.R. 96-7P, 1996 WL 374186, at *4. Furthermore, the ALJ, by
failing to fill the gaps in the administrative record, could not have properly evaluated Plaintiff’s
credibility. Therefore, “remand is necessary so that the ALJ may properly assess Plaintiff’s
credibility in accordance with the regulations and after reexamination of the relevant evidence in the
record,” since the ALJ’s credibility determination was not supported by substantial evidence. Shutts
v. Colvin, No. 12-CV-0734, 2013 WL 4080601, at *10 (N.D.N.Y. Aug. 13, 2013).
C. VE Testimony
Plaintiff argues that the ALJ erred in relying on an incomplete hypothetical posed to the VE.
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Pl.’s Br. at 20. Plaintiff argues that since the restrictions proposed to the VE failed to consider Dr.
Tiso’s opinions, the RFC was based on inadequate evidence. Id. However, because the ALJ erred
in the weight it assigned Dr. Tiso’s opinion, the Court cannot properly consider whether the ALJ’s
hypothetical failed to reflect the opinions of Plaintiff’s physicians.
V.

CONCLUSION
Accordingly, it is hereby:
ORDERED, that the decision of the Commissioner is VACATED, and the case is

REMANDED for a new hearing consistent with this Memorandum-Decision and Order; and it is
further
ORDERED, that the Clerk of the Court serve a copy of this Memorandum-Decision and
Order on all parties.
IT IS SO ORDERED.
DATED:

January 15, 2015
Albany, New York

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